Citation Nr: 1011821
Decision Date: 03/30/10 Archive Date: 04/07/10
DOCKET NO. 08-38 897 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
St. Louis, Missouri
THE ISSUES
1. Entitlement to service connection for residuals of
tuberculosis.
2. Entitlement to service connection for vision problems, to
include as secondary to tuberculosis.
3. Entitlement to service connection for bilateral hearing
loss.
4. Entitlement to service connection for tinnitus.
REPRESENTATION
Veteran represented by: Missouri Veterans Commission
ATTORNEY FOR THE BOARD
L. L. Mollan, Associate Counsel
INTRODUCTION
The Veteran served on active duty from December 1965 to
December 1967. The Veteran also served in the United States
Army Reserves.
These matters come before the Board of Veterans' Appeals
(Board) on appeal from a June 2007 RO decision, which denied
claims for service connection for bilateral hearing loss,
bilateral tinnitus, residuals of tuberculosis, and vision
problems secondary to tuberculosis.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the Veteran
if further action is required.
REMAND
The Veteran is seeking entitlement to service connection for
residuals of tuberculosis, vision problems secondary to
tuberculosis, bilateral hearing loss, and tinnitus. After a
thorough review of the Veteran's claims folder, the Board has
determined that additional development is necessary prior to
the adjudication of these claims.
With regard to the Veteran's claims for service connection
for residuals of tuberculosis and vision problems secondary
to tuberculosis, the Veteran indicated on his January 2007
claim that he developed tuberculosis in July 1967. In an
April 2008 Privacy Authorization Form to a congressman, the
Veteran indicated that he was treated for a respiratory
infection in service. In support of his claim, he has
submitted a December 2008 letter from his sister-in-law who
asserts that she recalls the Veteran seeking treatment from a
physician shortly after his discharge from service in 1967
for chills and pains in his chest, which were diagnosed at
that time as pleurisy.
The Board notes that the Veteran's service treatment records
are not able to be located. A Formal Finding on the
Unavailability of Service Medical Records was issued in June
2007.
VA medical records from 1972 reflect that the Veteran was
diagnosed with and treated for tuberculosis. In a July 1972
VA treatment record, it was noted that, 3 years prior, the
Veteran had an episode of pleuritic type chest pain. It was
noted that the Veteran continued to have similar pleuritic
chest pain for the past 3 years. In an August 1972 VA
medical record, the Veteran was noted to have fibrocalcific
changes in both lungs compatible with old granulomatous
disease.
The Board notes that the 1972 VA medical records reflect that
the Veteran had pleuritic type chest pain 3 years prior,
which would be approximately 2 years after his discharge from
service. Nevertheless, the Board notes that the Veteran has
asserted that he suffered respiratory infections during
service and that his tuberculosis began during active duty.
Currently, it has been asserted that he has residuals of
tuberculosis, to include chronic obstructive pulmonary
disease (COPD), hearing problems, and vision problems. See
VA Form 9 Appeal, December 2008; wife's statement, March
2009. Specifically, it was asserted in a March 2009
statement submitted by the Veteran's wife that the Veteran
was treated for tuberculosis with an ototoxic drug that can
cause vision problems and hearing problems. The Veteran's VA
medical records do reflect that he was being followed for
optic problems and hearing problems during the course of his
1972 treatment for tuberculosis. Current VA medical records
reflect that the Veteran has a diagnosis of COPD, as well as
hearing loss.
VA has a heightened duty to assist in cases where the
Veteran's service treatment records are unavailable. See
O'Hare v. Derwinski, 1 Vet. App. 365 (1991). As such, in
light of the Veteran's assertions that he began having
respiratory problems during service which essentially
continued until he was treated for tuberculosis in 1972, and
his assertions that his tuberculosis or treatment for
tuberculosis resulted in current disabilities, the Board will
afford the Veteran a VA examination for the proper assessment
of his claims. 38 U.S.C.A. § 5103A (West 2002). As such,
these issues must be remanded in order to schedule the
Veteran for a VA examination to determine whether he has
current residuals of tuberculosis, to include COPD, hearing
problems, and vision problems, that was incurred in or
aggravated by his active duty. Colvin v. Derwinski, 1 Vet.
App. 171, 175 (1991) (if the medical evidence of record is
insufficient, the Board is free to supplement the record by
seeking an advisory opinion or ordering a medical
examination). The examiner must specifically determine
whether the Veteran has vision problems that were caused or
aggravated by tuberculosis, to include treatment for
tuberculosis.
With regard to the Veteran's claims for service connection
for bilateral hearing loss and tinnitus, the Veteran asserted
in his January 2007 claim that he developed tinnitus and
bilateral hearing loss in January 1966. He asserted in his
December 2008 VA Form 9 Appeal that he was exposed to tank
fire and artillery fire during service which caused current
hearing loss and tinnitus.
With regard to current diagnoses of these disabilities, the
Board notes that a June 2007 VA treatment record reflects
that the Veteran has current hearing loss bilaterally and
that the Veteran reported difficulty hearing over the past 40
years since his military discharge. It was also noted in his
examination report that the Veteran reported constant
bilateral tinnitus in the past but stated that this has
resolved over the past few years. Additionally, the Board
notes that the Veteran denied tinnitus in a September 1972 VA
treatment record.
On his December 2008 VA Form 9 Appeal, the Veteran asserted
that he never stated that his tinnitus has resolved and, if
he had said such, it was because he misunderstood the
question or the examiner misunderstood his answer.
The Board notes that the case of McLendon v. Nicholson, 20
Vet. App. 79 (2006), held that an examination is required
when (1) there is evidence of a current disability, (2)
evidence establishing an "in-service event, injury or
disease," or a disease manifested in accordance with
presumptive service connection regulations occurred which
would support incurrence or aggravation, (3) an indication
that the current disability may be related to the in-service
event, and (4) insufficient evidence to decide the case.
The Veteran is competent to offer a description of the
symptoms he experienced in service, and to describe a
continuity of symptoms since service. A layperson, such as
the Veteran, is generally not capable of opining on matters
requiring medical knowledge. Routen v. Brown, 10 Vet. App.
183, 186 (1997), aff'd sub nom. Routen v. West, 142 F.3d
1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998).
However, lay testimony is competent when it regards the
readily observable features or symptoms of injury or illness
and "may provide sufficient support for a claim of service
connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994);
see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir.
2007).
In Charles v. Principi, 16 Vet. App. 370 (2002), the United
States Court of Appeals for Veterans Claims (Court) held that
under 38 U.S.C.A § 5103A(d)(2), VA was to provide a medical
examination as "necessary to make a decision on a claim,
where the evidence of record, taking into consideration all
information and lay or medical evidence, [including
statements of the claimant]," and where, the claimant had
been diagnosed to have tinnitus, and had proffered competent
lay evidence that he had had continuous symptoms of the
disorder [i.e., ringing in the ears] since his discharge.
Because there was evidence of record satisfying two of the
requirements of the statute, i.e., competent evidence of a
current disability or recurrent symptoms, and evidence
indicating an association between the appellant's disability
and his active service, but there was not of record,
competent medical evidence addressing whether there is a
nexus between his tinnitus and his active service, VA was to
provide the claimant with a medical "nexus" examination.
In this case, as the Veteran has reported that he currently
experiences tinnitus or ringing of the ears and has
difficulty hearing, observations which he is competent to
make; he has indicated that these symptoms first began in
service, an observation which he is also competent to make;
and he has asserted there was some sort of misunderstanding
or confusion regarding his tinnitus symptoms at the June 2007
VA audiological consultation, the Board finds that the
necessity for a VA examination is shown for the proper
assessment of the Veteran's claims for service connection for
bilateral hearing loss and tinnitus. 38 U.S.C.A. § 5103A
(West 2002). As such, these issues must be remanded in order
to schedule the Veteran for a VA examination to determine
whether he has current hearing loss of either or both ears or
tinnitus and, if so, whether his current hearing loss of
either or both ears or tinnitus was caused or aggravated by
his active duty service. Colvin.
Additionally, in light of the above assertions suggesting
that certain medications the Veteran was prescribed for
treating his tuberculosis can affect hearing, the examiner
should also determine whether the Veteran has current hearing
loss or tinnitus that was caused or aggravated by the
treatment he received for tuberculosis.
Finally, the Board notes that VA has an obligation under the
Veterans Claims Assistance Act of 2000 (VCAA) to associate
all relevant records in VA's possession with the claims file
of a Veteran. 38 C.F.R. § 3.159 (2009). The Board notes
that the Veteran's spouse asserted in a March 2009 statement
that she was informed that VA has never requested the VA
medical records documenting the Veteran's treatment for
tuberculosis. Therefore, the Board will also take this
opportunity to locate any outstanding VA treatment records
that are not yet associated with the claims file, to
specifically include any medical records from the 1970s
documenting treatment for tuberculosis and any recent VA
medical records.
Accordingly, the case is REMANDED for the following action:
1. Obtain all of the Veteran's VA
medical records that have not already
been associated with the claims
folder, to specifically include any
medical records from the 1970s
documenting treatment for
tuberculosis and any recent VA
medical records.
2. Schedule the Veteran for an
appropriate VA examination for
residuals of tuberculosis. All
appropriate tests and studies should
be performed and all clinical
findings reported in detail. The
claims file should be provided to the
appropriate examiner for review, and
the examiner should note that it has
been reviewed. Additionally, the
examiner should elicit from the
Veteran a history of his symptoms
relating to his residuals of
tuberculosis. After reviewing the
file, examining the Veteran, and
noting his reported history of
symptoms, the examiner should render
an opinion as to whether the Veteran
currently has any residuals of
tuberculosis. If so, opinions should
be provided as to whether it is at
least as likely as not that the
Veteran's tuberculosis was incurred
in or aggravated by his active duty
service.
It would be helpful if the examiner
would use the following language, as
may be appropriate: "more likely than
not" (meaning likelihood greater than
50%), "at least as likely as not"
(meaning likelihood of at least 50%),
or "less likely than not" or
"unlikely" (meaning that there is a
less than 50% likelihood). The term
"at least as likely as not" does not
mean "within the realm of medical
possibility." Rather, it means that
the weight of medical evidence both
for and against a conclusion is so
evenly divided that it is as medically
sound to find in favor of that
conclusion as it is to find against
it. The examiner should provide a
complete rationale for any opinions
provided.
3. Schedule the Veteran for an
appropriate VA examination for vision
problems. All appropriate tests and
studies should be performed and all
clinical findings reported in detail.
The claims file should be provided to
the appropriate examiner for review,
and the examiner should note that it
has been reviewed. Additionally, the
examiner should elicit from the
Veteran a history of his symptoms
relating to his vision problems.
After reviewing the file, examining
the Veteran, and noting his reported
history of symptoms, the examiner
should render an opinion as to
whether the Veteran currently has any
vision problems. If so, an opinion
should be provided as to whether it
is at least as likely as not that the
Veteran's current vision problems
were caused or aggravated by his
tuberculosis or treatment for
tuberculosis, to specifically include
ototoxic drugs.
It would be helpful if the examiner
would use the following language, as
may be appropriate: "more likely than
not" (meaning likelihood greater than
50%), "at least as likely as not"
(meaning likelihood of at least 50%),
or "less likely than not" or
"unlikely" (meaning that there is a
less than 50% likelihood). The term
"at least as likely as not" does not
mean "within the realm of medical
possibility." Rather, it means that
the weight of medical evidence both
for and against a conclusion is so
evenly divided that it is as medically
sound to find in favor of that
conclusion as it is to find against
it. The examiner should provide a
complete rationale for any opinions
provided.
4. Schedule the Veteran for a VA
audiological examination. All
appropriate tests and studies should
be performed and all clinical
findings reported in detail. The
claims file should be provided to the
appropriate examiner for review, and
the examiner should note that it has
been reviewed. Additionally, the
examiner should elicit from the
Veteran a history of his symptoms
relating to his claimed hearing loss
and tinnitus. After reviewing the
file, examining the Veteran, and
noting his reported history of
symptoms, the examiner should render
opinions as to whether the Veteran
currently has hearing loss of either
or both ears or tinnitus. If so,
opinions should be provided as to
whether it is at least as likely as
not that the Veteran's current
hearing loss of either or both ears
or his current tinnitus was incurred
in or aggravated by his active duty
service. The examiner should also
provide opinions as to whether it is
at least as likely as not that the
Veteran's current hearing loss of
either or both ears or his current
tinnitus was caused or aggravated by
his tuberculosis or treatment for
tuberculosis, to specifically include
ototoxic drugs.
It would be helpful if the examiner
would use the following language, as
may be appropriate: "more likely than
not" (meaning likelihood greater than
50%), "at least as likely as not"
(meaning likelihood of at least 50%),
or "less likely than not" or
"unlikely" (meaning that there is a
less than 50% likelihood). The term
"at least as likely as not" does not
mean "within the realm of medical
possibility." Rather, it means that
the weight of medical evidence both
for and against a conclusion is so
evenly divided that it is as medically
sound to find in favor of that
conclusion as it is to find against
it. The examiner should provide a
complete rationale for any opinions
provided.
5. Then, readjudicate the claims. In
particular, review all the evidence
that was submitted since the most
recent supplemental statement of the
case (SSOC). In the event that the
claims are not resolved to the
satisfaction of the Veteran, he
should be provided a SSOC, which
includes a summary of additional
evidence submitted, any additional
applicable laws and regulations, and
the reasons for the decision. After
the Veteran and his representative
have been given the applicable time
to submit additional argument, the
claims should be returned to the
Board for further review.
The Veteran has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
No further action is required of the Veteran until further
notice. However, the Board takes this opportunity to advise
the Veteran that the conduct of the efforts as directed in
this remand, as well as any other development deemed
necessary, is needed for a comprehensive and correct
adjudication of his claims. His cooperation in VA's efforts
to develop his claims, including reporting for any scheduled
VA examination, is both critical and appreciated. The
Veteran is also advised that failure to report for any
scheduled examination may result in the denial of a claim.
See 38 C.F.R. § 3.655 (2009).
These claims must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board or by
the Court for additional development or other appropriate
action must be handled in an expeditious manner. See 38
U.S.C.A. §§ 5109B, 7112 (West Supp. 2009).
_________________________________________________
MICHAEL LANE
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board is appealable to the Court. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2009).